Indian bureaucracy – a Kafkaesque drama

Nothing disturbed me as much in recent months as the news reports of the former Coal Secretary of the Government of India (and my former senior colleague in the Petroleum Ministry) facing prosecution in the “coal scam” case; he has now been convicted. As a Deputy Secretary in the Petroleum Ministry in the early 1990s, it may be appropriate for me to detail the travails an honest officer goes through when (s)he is required to make recommendations on major commercial decisions relating to mining rights for extracting natural resources to promote economic growth in the country. I draw on my experience in the petroleum exploration sector to highlight the pressures an officer goes through during such an exercise, given the system s(he) must work with.

The officer starts with the legacy of a socialist past, where natural resources extraction was solely the prerogative of the public sector. While (s)he may genuinely believe that opening the natural resource extraction sector to competition from the private sector will promote more efficient operations which yield dividends to the country, (s)he has to contend with hostility to such moves from influential sections within the government and legislature (both political and bureaucratic), not only because of fears of losing the powers of patronage, but also because of a mindset moored in outdated socialist economics, with little understanding of the economics of efficient economic processes. Add to this the heartburn in the public-sector enterprises of being stripped of their monopoly in the natural resource sector and you have a situation where the reformist bureaucrat/politician virtually comes up against a brick wall. We were genuinely lucky in the early 1990s of having had leaders in the political and bureaucratic set up who backed these reforms wholeheartedly. In more recent times, there has been a backlash against private involvement in the natural resource extraction sector, partly because of indifferent regulation of private producers, but also because the Indian intelligentsia has joined the rising global chorus against capitalism, regardless of its contribution to greatly improved living standards over most of the globe (including India) over the past quarter century.

The problem arises where the natural resource sector has not developed a bidding/auction system to choose among alternative bidders. The petroleum sector was lucky in this respect; petroleum secretaries in the 1980s presided over the development of competitive bidding systems, drawing on best practices in the international petroleum industry. The Coal Ministry was not so fortunate: with a behemoth like Coal India and with powerful political interests controlling patronage strings in this sector, there was little chance of allowing private sector participation in this sector.  Once Coal India fell short in meeting coal requirements of private industry, there was the inevitable clamour for permitting captive coal mining by diverse industries to meet their raw material requirements. The issue of allocation of coal mining blocks to private players is made more complicated by the fact that mining leases are to be granted by state governments. The petroleum sector has been more fortunate: the central government is the licensing authority for offshore petroleum blocks; where onshore blocks are concerned, state governments have not been involved in the process of selection of private operators but are only approached for grant of mining leases after selection of the private party by the central government through a competitive bidding process.

The Coal Ministry officials did make efforts, from 2004 onwards, to introduce an auction system for allotting coal blocks. The Law Ministry, after two years of to-and-fro consultations, covered its backside in 2006 by opining that the government could go in for auction/competitive bidding either by amending the Mines and Minerals (Regulation and Development) Act, 1957 or by effecting changes in the existing administrative instructions. Anyone who has worked in government will tell you that if the options are to go in for a tedious legislative process versus quick administrative action, the former will always win the battle, given that no one in government would want to be seen as hastening the entry of the private sector into a hitherto reserved sector. Given the snail speed at which decisions are taken by government, it is not surprising that it took eight years to get government approval for the auction process.   Since there was need to augment coal supply, applications for coal blocks from end users were considered, with recommendations from state governments, by a Screening Committee headed by the Coal Secretary of the Government of India. Once such a system is adopted, the element of subjectivity inevitably creeps into the decision-making process. The Screening Committee also had to rely on information provided by Coal India, other administrative ministries and the state governments in arriving at decisions on who should get the coal blocks. It is here that the Coal Ministry bureaucracy fell afoul of the Comptroller and Auditor General of India (CAG) and the Central Bureau of Investigation (CBI), two deadly Cs that are feared by the bureaucracy, often for their limited understanding of the nuances of economic decision making. Not only does the CAG lack expert domain knowledge of the sector it is auditing, there is also little comprehension of the peculiar requirements that necessitate specific business decisions. I can point to specific CAG conclusions in the audit of oilfield operations that have drawn derisive comments from oil industry insiders. The CBI, of course, has developed the process of endless investigations into a fine art, leading the highest court of the land to wonder if it was a “caged parrot”.

More problematic are the issues a bureaucrat faces even after a bidding process has been followed. Most officers in government, especially those in the Finance and Law Ministries, are blissfully ignorant of the complexities of the financial and legal issues relating to natural resource extraction. Getting a proposal to grant mining rights to a private investor approved right up to the level of the Union Cabinet is an exercise that would tax the abilities of a Hercules. Innumerable trips to North Block and the upper floors of Shastri Bhavan later, the anxious bureaucrat (trapped between the Scylla of an inflexible bureaucracy and the Charybdis of the ire of his (her) political and bureaucratic bosses) wipes his (her) brow in relief when the all-important clearance of the Cabinet is received. More tension is in store as the contract must be negotiated and then vetted by the Law Ministry and the Internal Financial Adviser in the Ministry before it can be signed. In my time, this exercise could take anywhere from six months to a year.

The next stage of the steeplechase is the opprobrium heaped on the Ministry’s bureaucrats by those in the public sector, government and the political class who are opposed to private participation for ideological reasons or simply because their powers of patronage have been curtailed. Parliamentarians, especially from the left of the political spectrum, vent their anger by terming any such deal a “sell-out”, blissfully ignorant or dismissive of the economic arguments favouring the decision. It is at this juncture, a couple of years after the mining lease has been granted, that the CAG generally enters the picture. From my personal experience, the CAG officials examine the issue of private participation in mineral resource extraction from a very narrow, “tunnel” perspective. There are more than enough parties ready to cast doubts on the entire decision-making process. In recent years, the excessive media attention and the need to sensationalise every issue has led to public trials in nearly every natural resource sector. Most unfortunately, the CAG has a narrow auditor’s view of the subject and does not appreciate the compulsions under which the bureaucracy functions, rather surprising when one considers that this important constitutional functionary has himself gone through the same system till a couple of years earlier. To take the “coal scam” itself as an example, the CAG has found fault with the Ministry for going in for a screening rather than a bidding process. The then Coal Secretary and his subordinates have been hauled over the “coals” for acquiescing in the procedure followed of screening applications, notwithstanding what has been pointed out earlier in this piece of the efforts of the Coal Ministry bureaucracy to initiate the bidding process. I found it amazing that a former Cabinet Secretary, in a newspaper article, took the view that the Coal Secretary should not have agreed to the screening process. Given that there was no likelihood of an early resolution of the decision regarding the bidding process and given the need to step up availability of coal, the Coal Ministry bureaucracy probably took the only course of action possible under the circumstances, taking, in all cases, the approval of the then Minister for Coal, who, incidentally, was also the Prime Minister. Holding the Chairman of the Screening Committee responsible for the accuracy (or otherwise) of the information presented to him by other Ministries and state governments violates the principle of collective responsibility. In any case, as any bureaucrat can swear, it is well-nigh impossible to verify the correctness of every fact presented.

The final nail in the bureaucrat’s coffin is the entry of the courts and the CBI into the drama, which gives a truly Kafkaesque twist to the entire episode. Once the unfortunate man (or woman) has entered this chakravyuha, from which there is no escape, life is a series of courtroom appearances, punctuated by terms in prison. The tortuous legal processes ensure that the case(s) drag on for an inordinately long time, well into the bureaucrat’s retirement phase of life and sometimes after (s)he has passed on from this world. The present government’s decision to amend the Prevention of Corruption Act, 1988 (PCA) to exclude the all-encompassing sweep of the pernicious Section 13 (1)(d)(iii) of the Act has been criticised by high-minded corruption crusaders. This sub-section defines “criminal misconduct” inter alia as “while holding office as a public servant” obtaining “for any person any valuable thing or pecuniary advantage without any public interest”. This catch-all provision can be used to nail almost any action of a bureaucrat since every decision (even the sanction of a private school) will lead to pecuniary advantage for some person. It is regrettable that the fundamental judicial principle of mens rea, which is the most important determinant of guilt under criminal law, is given short shrift in the PCA. To their misfortune, the former bureaucrats of the Coal Ministry have fallen afoul of this travesty of a legal provision.

Harish Gupta and his former colleagues have been found guilty of not only criminal misconduct (under the PCA) but also of criminal conspiracy and cheating under the Indian Penal Code, 1860. No prior sanction of the Government of India under Section 197 of the Criminal Procedure Code was obtained as required under law. This, and other issues will, no doubt, be raised in appeal, but it is scarring for a bureaucrat, known for his rectitude, to have his reputation besmirched by imputations of such conduct, especially when he was implementing the executive policy in force at the time he was in office. For all the public impression that bureaucrats lead the life of maharajas, let me (as an ex-member of that tribe) emphatically state that most babus (as we are pejoratively known) are just about able to afford one post-retirement home and live off the pension. The honest bureaucrat has only the fig leaf of his (her) integrity to cover him (her)self, the rest of it, including his (her) hard work, impartiality and simplicity of living, having been torn to shreds in recent years, when there has been a virtual “French Revolution” effort by innumerable Madame Defarges to vilify the character of the bureaucracy and watch, with unctuous relish, as bureaucrats are dragged on tumbrils to the guillotine in the presence of a blood-thirsty public. It is in this context that the Prime Minister’s assurance to bureaucrats of support for their bona fide decisions, in his Civil Service Day address on April 21, 2017, lacks conviction. The former Prime Minister was the Coal Minister when Harish Gupta allegedly committed the “crimes”, but he has not uttered a word in support of his erstwhile beleaguered colleague. Not only that, he, and his political deputies, have got off without even a slur on their conduct. Who knows which bureaucrat of today will be making the rounds inside Tihar Jail a decade hence! It will not be surprising if the bureaucracy adopts the motto “each man to himself and the devil take the hindmost”. Little wonder then that, today, the offspring of politicians, film actors and businessmen follow their parents’ professions, while the well-educated, talented daughters and sons of bureaucrats become lawyers, IT professionals and academics. If the bureaucracy loses valuable human capital, we have only our systems to blame for it.

 

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28 Responses to Indian bureaucracy – a Kafkaesque drama

  1. Mr. Krishna says:

    I realize that this write up is in the context of Jailing of Shri Gupta (former Secy, Coal Ministry). And the background and peculiarty of Ministries like Coal, Petroleum and Natural Resources etc are presented, quite convincingly. But to whitewash the bureaucrats to be above board in almost all cases is inaccurate and does disservice to well-founded points made before in the write up. Cases of serious indiscretions galore. When powers of such scale and impact are given to even a JS or DS or an US of GoI that they can sign an order, albeit wholly unsound and clearly against common sense, principles of good governance practices, just/fairness and in contravention to existing laws and statutes, it is only deservingly fair to have whatever few mechanisms in place to hold such people with antecedants of indiscretions to account. It is entirely acceptable proposition that political leadership in this case appears to be let off hook, for now, and that is unfortunate. But to say, bureaucrats all over are good and just, that seems hardly credible. Even senior, tenured bureaucrats, when indiscretions of their colleagues are brought to their notice, resort to uniquely “babudom” styled intimidation and ridicule perhaps in the hope that the aggrieved will be over-awed and step back. When they must in fact take a position and if indeed the grievance/complaint is found to be well-founded set things right.

    This setting things right never seems to be given importance. The bureaucrats come what may protect theirs. The politicos do the same for their fraternity. And the public, who no one seems to care about, are to go knocking the doors of justice that invariably is exobirantly expensive and is almost always delayed/ as a consequence, denied.

  2. dinesh kumar goyal says:

    So well articulated…
    Can it be translated in vernacular languages, say in Hindi, for wider circulation and benefit of larger audience.
    Regards

  3. sumitamisra says:

    Brilliantly & accurately analysed.

  4. Ravi B Budhiraja says:

    A great article and very timely.
    Hope the powers that be take a serious note of it.
    Regards.

  5. vramani says:

    Thank you, sir.

  6. V Jagannath says:

    A decision based on compulsion of Business needs for the benefit of greater public , lauded at that time for efficiency now being convicted and those coal mines where a gram of coal may not have been mined. Its like a doctor being convicted for writing a brand name instead of writing a generic thus loss to exchequer. Hope our Bureaucrats are not baffled by such scary incidents and they continue to deliver aggressively. well written.

  7. Ved Raj says:

    Ramani ji,
    Your analysis is perfect A very timely exhortation seeking some collective thinking and action to prevent unjust action against honest descision makers in the government machinery.

  8. Well i agree with your view. But i sometimes wonder how whenever single IAS officer is charged whole IAS community starts crying and fouling.(bihar case) As if IAS can never be corrupt. We easily take credit for good thing but blame system pressure etc for own mistake. Its time this ellite service become more democratic.

    • vramani says:

      It is not a question of the IAS, at least as far as I am concerned. It is more about a miscarriage of justice which is likely to paralyse decision making.

  9. Dr. Jiban Chandra Chakraborty says:

    A very brilliant and analytical article. Time has come when Indian bureaucracy has to rethink if it will at all execute the decisions taken by its political masters at the expense of its own reputation and integrity. Officers who are honest to the backbone should not and can not be left at the mercy of the selfseekers. It is not ,however, the system that is entirely to blame for what is happening. Experiences show that some officers feel very happy to mortgage their souls to the Lucifers. How to set things right is a major challenge now.

  10. devarajanp says:

    Great insight into the system. I’m also interested in understanding the solution side of the presented problems. What will give the system the confidence and the conviction to work and proceed without fear? Are lengthy and complicated legal amendments the only way out?

    This is a rut the country can do without.

    A wholehearted thank you for the write up.

    Best Regards,
    Dev

  11. Jayashree says:

    Thank you for this perspective. I am deeply saddened. My father resigned from the railways on a matter of principle and refused to be wooed back. He actually described what would happen in the war of politics notwithstanding his impeccable record.

  12. vramani says:

    Thank you, Jayashree. I can understand how you feel.

  13. S B Iyer says:

    While the general point highlighted- the unfortunate hounding of well-meaning and honest officers for bona fide decisions is well taken, may I submit that it is only now that the author and several other former & serving bureaucrats seem to have come out so strongly. The reason is that it is an honest senior IAS officer that has been affected. For years, non-IAS officers have suffered far worse without their IAS (and IPS) peers standing by them. As a result, they find, when they are the target of the CBI /CAG etc. there is no one else to defend them. At least now, let all civilian officers -to whichever Service/cadre they belong, rise up and protest when an honest colleague is unfairly indicted.

  14. Abhijit says:

    Great analysis.
    A key unacceptable feature of CAG reports is their dogged opacity. Typically the audit process
    begins with preliminary observations called “half margins”, draft paras etc. Responses are furnished by the auditee. Then clarification may be sought by the auditors and the auditee responds and so on. Then the final report is made. The opacity lies in the fact that, in the final report, the CAG establishment frames its own conclusions, often backed by its own reasons but the report will not carry as appendix the preliminary observations or draft paras and their rebuttals or the reasons proffered by the auditee in defence of its actions. One suspects that no such primary source documentation is appended to the final report as its integral part because often the content and substance of the final report are almost or completely identical to the draft stage formulations.So the final report presents its readers with conclusions and inferences without the benefit of arguments and in many instances, the constraining circumstances and facts presented by the auditee.
    The resulting report attains scriptural authenticity on the strength of an axiomatic premise of the the auditor’s infallibility and omniscience by a masking, whether intentional or not, of arguments and facts that weaken or pretty much shatter the case sought to be made out by audit.
    Remember that sardonic adage, “If it’s in print, it must be true.”?

  15. citizen says:

    Compulsions and pressures? Working under constitution or systemic bureaucratic corruption?

  16. Dr Prashant says:

    Thanks for your well-articulated analysis of how government works in India. It is really a heartburn which starts on the high virtues like honesty. I appreciate your knack of analyzing, more efficiently and succinctly: being a bureaucrat. Regards

    Dr Prashant
    Dehradun

  17. Devanshi Chanchani says:

    Mr. Ramani, Thank you so much for this piece. We learn so much from you! Devanshi

  18. amitabh agarwal says:

    Well actually most of the comments are directed against the IAS and hence prejudiced!

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